AGL's attempts to weaken Victoria's environmental laws

Summary
  • In 2018, the EPA and DELWP reviewed guidelines for managing water quality across Victoria
  • AGL was actively developing a proposal to build a gas import terminal that would likely contravene the existing guidelines prohibiting new wastewater discharges in high conservation areas
  • AGL tried to weaken the guidelines in an attempt to smooth the passage of their project at Crib Point, in the Ramsar-listed Westernport Bay
  • The final guidelines retained the prohibition on new wastewater discharges, and new legal advice suggests AGL’s project is unlikely to be consistent with those guidelines.
  1. What are “State Environment Protection Policies”?

State environment protection policies (SEPPs) are subordinate legislation made under the provisions of the Environment Protection Act 1970. The SEPP provide more detailed guidance on the application of the Act and are used to achieve the Act’s policy objectives. The powers of a SEPP cannot exceed those provided in the primary Act.[1]

  1. Developing a new State Environment Protection Policy for protecting water quality

In the context of the “Water for Victoria” plan, the Victorian Government committed to update State legislation on waters and set a single instrument (SEPP Waters) to guide water quality management and protection in Victoria, covering surface waters, estuarine and marine waters and groundwater across the State.

As part of developing the new SEPP (Waters), a draft version of the SEPP was published online on 26 February 2018 and subject to a four-month public consultation process by the Department of Environment, Land, Water & Planning (DELWP) and the Environment Protection Authority (EPA).

A total of 83 submissions were received and were taken into account in the finalisation of the SEPP Waters.

  1. AGL’s attempt to weaken protections on water quality

On 19 June 2018 AGL presented a submission in the SEPP (Waters) public consultation process.[2] In its submission, AGL took special interest in Clause 22 of the draft SEPP, which prescribed that the EPA could not authorise new wastewater discharges in high conservation significance areas (such as Westernport bay, a Ramsar Wetland).

AGL argued in favour of weakening the prohibition on new wastewater discharges, specifically:

  1. To redraft the Clause 22 of the SEPP Waters, move away from prescriptive licence limits and adopt the use of risk assessments to set risk-based licence limits.
  2. That the EPA should consider the effects of Clause 22 on operations within Victorian Ports. “AGL has particular concerns regarding the impact of clause 22 on vessels operating within declared Ports, and/or vessels operating in areas in which navigation and shipping is a recognised beneficial use. AGL submits that the SEPP should include mechanisms, which enable risk based decision making about wastewater discharges within Victorian Ports”

This submission was made after AGL had announced Crib Point (in Westernport Bay) as their preferred site for a liquefied natural gas (LNG) import terminal. The terminal would be capable of dumping up to 450,000,000 litres per day of cold, chlorinated seawater back into the bay.

AGL was clearly aware that the SEPP (Water) could derail their proposed project.

At the same time as trying to erode Victorian water policy, AGL was also preparing to submit a Referral Form to the Victorian Planning Minister, who would determine whether AGL’s LNG import terminal would be subject to an Environmental Effects Statement process. This is the highest level of environmental assessment in Victoria.

Obtaining a more favourable version of the SEPP (Waters) would certainly make this assessment process easier for AGL.

  1. The final version of SEPP (Waters) retains the prohibition on new wastewater discharges in high conservation areas

DELWP/EPA stated in the Summary of Comment and Response Report[3] that the new SEPP (Waters) retains provisions that have been in statutory policy since 1988, and the objective of this provision is to ensure that beneficial uses were not further threatened by new wastewater discharges. The standard set by this clause is such that no new wastewater discharges have been authorised since a similar requirement was introduced into statutory policy in 2002.

While there were no substantial modifications to the original draft, a new subclause was introduced that gives some discretion to the EPA to approve wastewater discharges if they “protect the beneficial uses” in a high conservation significance area.

Legal advice obtained by Environment Victoria suggests that:

  1. This potential exemption does not apply to AGL’s proposed gas import terminal
  2. Therefore the project (and its plan to dump up to 4,500,000 litres of cold, chlorinated sea water into a high conservation area) is unlikely to be consistent with the SEPP (Waters) and should not be approved by the EPA.

[1] https://www.epa.vic.gov.au/about-us/legislation/state-environment-protection-policies

[2] https://www.water.vic.gov.au/__data/assets/pdf_file/0033/394971/AGL.pdf

[3] https://www.water.vic.gov.au/__data/assets/pdf_file/0021/395031/SEPP-Waters-Summary-of-Comment-and-Response-Report.pdf